Thursday, August 3, 2023

Part I

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Former President Trump Indicted Again. And Again: The U.S. Is Headed Toward Uncharted Legal and Political Territory

Throughout our long national history, the United States has faced crises, controversies, trials, and even wars. But right now, the United States is entering, it’s indeed pushing far into uncharted territory. By uncharted territory, I refer to the criminal prosecution of a former president of the United States. We need to note that in our history, such a move has been contemplated before, but it had never happened, but now it has.

Former President Donald J. Trump has already been indicted on multiple criminal counts. First of all, in New York where New York’s district attorney, Alvin Bragg, has filed criminal charges against the president, and a grand jury’ has handed down an indictment on issues related to so-called payoffs to porn star, Stormy Daniels. But then, Special Counsel Jack Smith sought and obtained an indictment against the former president by a federal grand jury in a case that is located in Florida. That indictment had to do with the national security documents controversy.

But then, on Tuesday of this week, another federal grand jury in the District of Columbia, handed down an indictment, one sought by the very same Special Counsel Jack Smith. This indictment has to do with the events of January 6th, and with the aftermath of the 2020 presidential election. In this case, Jack Smith sought and obtained an indictment against the former president on one count of obstruction and three counts of criminal conspiracy. At just about the same time, a state prosecutor in Atlanta, Georgia indicated that she would likely be asking for an indictment and presenting the evidence to a grand jury there in Atlanta on state charges of interference with the 2020 presidential election there.

Well, you put all that together and that means that within about 30 days or so, the likelihood is that the immediate former president of the United States, Donald J. Trump, is going to be faced with multiple indictments at the state, at the local, and at the national level. The federal charges are by far most significant, but the fact that these charges are being brought in different jurisdictions on different grounds and completely different cases certainly complicates the former president’s legal challenge. Taken separately, each of them would represent the first time a former president of the United States has been indicted on criminal charges, that just as a fact has never happened before. Taken altogether, these charges amount to what can only be described as a legal avalanche.

Well, what are we to make of all of this? What are Christians to make of all of this? Well, I think of the words of former President Theodore Roosevelt who once said, “No man is above the law and no man is below it.” Now, in moral terms, a former president should be neither above the law nor below the law. Rather, the law should, in moral terms, be applied equally. But at the same time, it would be moral insanity to argue that there are no complications when it comes to a criminal trial of a former president of the United States. It would also be moral insanity to argue that the criminal prosecution of a former president could never be justified. Clearly, that would not be a rational position. There could be circumstances that might justify the criminal prosecution of a former president of the United States; but at the very same time, no one should underestimate the danger of the territory into which the United States is now marching.

But there’s a real question as to whether the nation is marching in this case or being marched.

Some of us are old enough to remember that the nation faced very similar questions, certainly related questions, in the aftermath of the resignation of President Richard M. Nixon in 1974. That resignation, of course, came in the wake of what was known as the Watergate Crisis. By the time that crisis unfolded, it was clear that the criminal conspiracy extended all the way to the Oval Office and to the president. Nixon resigned only when it became very clear that he faced an absolutely certain impeachment in the House of Representatives, certain conviction by the Senate, and then forced removal from office. Followed, in all likelihood, by criminal prosecution on charges of, now wait for it, see if you heard this before, obstruction and conspiracy. Basically, this very same grounds even in a different case, separated by decades.

As you’re looking at this, you recognize we really are in uncharted territory. The country came close to going into that territory in 1974, but it did not. And all of that had weighed very heavily on America’s so-called accidental president, Gerald Ford. He eventually pardoned Richard Nixon and spared the former president and the nation the ordeal of a trial.

Now, historians debate this, but was Ford’s pardon right or wrong? The evidence is still out and the argument is going to be continuing, but President Ford’s concern had less to do with the former president’s legal status than with the future of the country. He was very concerned with questions such as these: How exactly could a trial of a former president be conducted? Would the trial be a demonstration of the rule of law or would it turn into a platform for political grandstanding?

President Ford, if you remember, came into the office under unusual circumstances. He was never elected to serve as the Vice President of the United States. He came into that position only after he was confirmed by the House of Representatives and the United States Senate due to the resignation of former Vice President Spiro Agnew in a corruption controversy. After assuming the office of the presidency, Gerald Ford was very concerned that if a criminal trial were to take place against former President Richard Nixon, even on justified charges, the former president and his supporters would simply turn it into a massive publicity stunt. But the same risk presented itself on the other side. Would the former president’s enemies basically seek to turn some kind of criminal proceeding into a political opportunity?

There were other questions. Would the greater likelihood be that a trial would result in a criminal conviction of the former president, or would it result in an acquittal that would’ve left Richard Nixon able to claim vindication? Questions of executive privilege and raw presidential politics might have left a jury and the entire judicial system uncertain of the law. But we need to note that the comparison with Richard Nixon has its limits. When you look at former President Donald Trump, we’re not merely talking about a former president. We’re also talking about the leading candidate right now for the Republican nomination for the Office of President in the 2024 presidential election.

The rules by which federal prosecutors operate indicate that the charges should be brought in the jurisdiction as close as possible to where the crime or the alleged crime had taken place. That’s why the documents trial is going to be held in Florida, and that at least in part explains why these charges were brought in Washington DC, in the US Federal District Court for the District of Columbia.

But there’s a political and a cultural dynamic behind this as well. As you look at the District of Columbia, you’re looking at a jurisdiction in which about 90% of those voting there in the 2020 presidential election voted against Donald Trump. Analysts on both the left and the right–Republicans and Democrats–recognize that a federal jury in the District of Columbia is actually far more likely to convict this former president than a jury impaneled in South Florida.

But the indictment handed down this week involves charges that a prosecutor will almost certainly find difficult to prove in court. That’s just something that needs to be stated as a fact. These charges are notoriously difficult to prove once a criminal trial begins.

That’s not to say that a conviction is impossible–not by any means–but it is a very high standard for a prosecutor to meet. These are very complex charges. Dealing with the obstruction of justice, that’s one charge. And at least at this point, four charges is some form of conspiracy. Part of the problem here is that it’s going to be very difficult for a prosecutor to say, “Here is where there was a clear violation of law, and there is where you have a politician acting politically, even a president acting as a politician.” Whether the acts were righteous or unrighteous, right or wrong, liberal or conservative, the fact is that there is no way to criminalize basic political activity, even, we should add, when the vast majority of Americans would consider certain activities reprehensible. It’s a basic fact of law that reprehensible does not necessarily mean illegal, and illegal does not necessarily mean able to present evidence to a jury in such a way that a jury convicts on that evidence.

We’re looking at a very high challenge for the government to meet here. The obstruction and conspiracy charges are based on what can only be described as inventive legal arguments coming from Special Counsel Jack Smith. The editors of National Review Magazine, though, condemning the former president for his words and his actions, said that the special prosecutor in this case, the special counsel, “is endeavoring to criminalize protected speech.”

Now, the enemies of Donald Trump are elated. Former US Attorney Harry Litman declared that the indictment will begin what he called, “The most important case in the nation’s history.” Well, I’ll just remind us that the nation has a very long history, a good many very important trials.

UCLA law Professor Richard L. Hasen described Jack Smith’s latest charges as, “Perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any US Court against anyone.” Wow. You just have to ask the question, will it look that way in a few years? In a few months? Now, I’ll just be candid at this point, I would prefer to see neither of the 2020 presidential candidates on the ballot in 2024. For different but unavoidable reasons, I consider both of the 2020 nominees, former President Donald Trump and President Joe Biden, to be morally disqualified from high office.

Both parties can do far better than to run those two individuals again, but even as Donald Trump’s behavior after the election was reprehensible, you have to ask the question, were those actions criminal? Would a conviction on these counts stand scrutiny and withstand appeals? Where does all of this leave the rule of law? Where does it leave confidence in our legal system?

A look at the text of the indictment, raises even more questions. To what degree has Jack Smith confused legally-protected free speech rights and political activity, on the one hand, with criminal acts that can be proved in court on the other? As a matter of fact, a part of what’s going on here is that even the prosecutor had to acknowledge that a good deal of what the former president said while in office after the election was constitutionally-protected free speech.

It’s very important to recognize that there are a good number of people on the left, a growing number of major figures on the left and in the Democratic Party, who actually want to curtail free speech rights simply because of their definition of political harm. Given the constitutional guarantees of free speech, which means oddly and ironically enough, the freedom to give erroneous speech, the fact is that it’s going to be virtually impossible for a former president of the United States to be convicted for saying things that are later claimed to be untrue. The fact is that what Jack Smith has brought in this indictment is something that could be charged against almost any former president of the United States. All of this just increases the likelihood that a lot of people, a very great number of people in the United States and even around the world will see this entire exercise as more political than legally or constitutionally justified.

Just because the majority of the American people would recognize something as being wrong does not mean that that amounts to a criminal charge that can be successfully prosecuted, that can be successfully maintained, for that matter, in a criminal trial. The fact is that what is illegal is not always that which is immoral, and that which is immoral is not always that which is illegal.

I think we can all acknowledge that Donald Trump is in his own category in American politics. Frankly, he intends it that way. But lying and manipulating and conspiring to gain political goals is, let’s be honest, pretty much a bipartisan enterprise in politics, and especially in the Oval Office. This does not justify any moral wrong, but there’s a huge difference between moral wrong and criminal wrongdoing, just ask Bill Clinton about that. The indictment relies upon a legal argument that the former president lied and then acted on those lies to interfere with the result of the 2020 presidential election, and thus to reverse a crucial exercise of our constitutional system: the election itself, and the certification of the election.

Donald Trump has pretty much told us that he interfered and sought to change the result. No big news there. But the fact is that he failed and the election was certified and it was certified just hours after an insurrection and raid on the US Capitol. Everything does feel different given the fact that Donald Trump is running for the presidency once again, and running strongly so far. But the bare fact is that President Biden is running for the same office at the same time. Is this some kind of cruel sequel? Let’s be candid. There will be absolutely no way for the political and the legal to be clearly separated throughout this process. Furthermore, the American people are so deeply divided that one side sees this indictment as proof that the rule of law is working and the other side sees that prosecution is yet another exercise of politics by other means.

Without doubt, there’s going to be a great deal for us to consider as we move ahead through coming weeks, months, and perhaps even years. There are going to be more headlines. There are going to be more disclosures. There will certainly be more surprises. The political stakes will just get higher. But there’s one essential rule when it comes to entering uncharted territory. You’d better make sure you know a way out. At this point, the nation is being pushed into dangerous territory, and let’s just face the fact, there is no clear path forward.

Part II

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A Measure of Justice in Pennsylvania: Jury Recommends Death Penalty for Tree of Life Shooter

We need to shift now from a trial that is now awaiting us in the future to one that is coming to a conclusion in Pittsburgh, Pennsylvania. This is the trial in the worst case of anti-Semitic violence in American history. The murderous attack upon the Tree of Life synagogue there in Pittsburgh, which cost the lives of 11 Jewish congregants. The man found guilty of those crimes in multiple federal counts, Robert Bowers, will now, as of a decision by the jury there yesterday, face the death penalty. The jury unanimously decided that Robert Bowers deserves what can only be described as the maximum sentence, and in this case, not for one, but for each of the murders.

Now, as we look at this, we need to recognize that there are a few questions as grave and as large as the question of capital punishment. There are few issues more grave than murder. And we as Christians understand that those two are essentially tied together.

We also need to recognize that in the rule of law, there’s a very high evidentiary standard made necessary for the use of the death penalty. The death penalty as a consequence–as a sentence for capital murder–requires extenuating circumstances. Under the federal court procedure, even once guilt has been determined, the jury in the penalty phase then has to consider, one-by-one, no less than 115 proposed mitigating factors, any one of which could have derailed a death penalty sentence. And instead, the defendant would’ve been sentenced to life in prison or even consecutive terms, as ironic as that is, in terms of life sentences, 11 times over. The impossibility of that just underlines as a matter of moral fact the necessity of the death penalty.

But the important thing to recognize is that not one of these jurors saw even one of those 115 proposed mitigating factors as sufficiently consequential to prevent the application of the death penalty. The federal judge under the rules is now required to apply the penalty upon which the jury had decided. And so yesterday, in Pittsburgh, the federal jury handed down in the sentencing phase a decision of the death penalty. It will be applied by the judge in a formal sense in that same courtroom today.

This is something that needs to weigh very heavily on the American conscience, and there are complications here that demand Christian attention. For one thing, as we’re talking about capital punishment and the death penalty, we need to recognize that the Scripture provides a theological rationale. Indeed, even the very words of God found in Genesis 9, the words of God spoken in this case to Noah in the Noahic Covenant and thus to all humanity following Noah: “The God who made the heavens and the earth and made human beings in his image declared that when any human being in premeditated murder takes the life, and thus, assaults God’s own image in a fellow human being, then that person is to be put to death.” And so the death penalty is made very clear in this case for what we would call premeditated murder in the United States.

And in this case, you’re talking about a man who premeditated that murder for a very long time. You’re talking about someone who made his hatred of the Jewish people very known, who plotted to enter into this major synagogue in Pittsburgh and to commit murder and mayhem, and he did. The eventual death toll was 11 persons. In this case, 11 Jewish-Americans killed in cold blood and a premeditated assault upon a Jewish house of worship on the day of Jewish worship. And as you’re looking at this, you recognize that as we’re talking about the Book of Genesis given in the Noahic Covenant, there is a very long history here. There’s also a moral imperative here. We are talking about what can only be described as premeditated murder.

We’re living in a time in which our society has done a couple of things. One good, one not good. On the good side, our society has taken the crime of murder very seriously and has even come up with rather sophisticated ways of describing different degrees of guilt and different consequences of various murderous crimes. Premeditated murder, what’s often described as first-degree murder, is the murder that calls for the death penalty, but not all of our states have the death penalty. That’s another complication in this case. The state of Pennsylvania has the death penalty on the books, but it hasn’t been applied since 1999 in terms of an execution. Just in terms of what’s true on the ground, there is no death penalty, and the current governor of Pennsylvania, Governor Josh Shapiro, has announced that he will not sign any death warrants. So, one of the reasons why this trial, which after all could also take place on state grounds, it’s one of the reasons why this trial proceeded in the federal courts.

But while the federal government has a death penalty statute, it is also true that the current president of the United States, Joe Biden, appears to want to pull back on death penalty applications, and indeed, on federal executions. And his current attorney general, Merrick Garland, has indicated that there will be a pause on all federal executions while the federal system is reexamined. That is considered in a political context, likely something that amounts to a demand from the left of the Democratic Party, increasingly in control of that party and very much opposed to the death penalty.

So, there’s a contradiction here. It’s more than an irony, it is a contradiction. You had this particular prosecution moved into the federal courts precisely because the federal government has a death penalty. Now, you have the death penalty applied by the jury, formally, today, by a judge. And yet, at the same time, it’s not at all clear that the execution of this convicted murderer is any more likely in a federal context than there in the state of Pennsylvania.

Now, at the deepest worldview level, I want to point out that the death penalty is connected to premeditated murder is something that appears to be not only revealed explicitly in God’s Word, but something that comes very much to the fore of the human conscience. Even where the death penalty is supposedly opposed, and even where it is made illegal, there is still an impulse. Let me give you an example of that. In the late 1950s, the state of Israel, then still a very young nation, eliminated the death penalty. That was seen as a sign of the progressivism at the time of the Israeli government. The death penalty no more. And yet, right now in Israel, there is a conservative majority that is seeking to bring back the death penalty. Why? Well, it is because the death penalty cries out in the human conscience that in the case of certain crimes, and here we’re talking about premeditated murder, sometimes even mass murder, only the death penalty makes moral sense.

It doesn’t make moral sense to convict someone of premeditated murder on a mass scale, and then sentence them to 11 consecutive life sentences without the possibility of parole. We understand that makes some kind of poetic statement, but it hardly amounts to justice. The death penalty as revealed in Scripture, as revealed by God himself, there in the Noahic Covenant, makes very clear that when there is a premeditated murder of a human being who is an image bearer of God, it’s an assault not only upon the human being, but upon the Creator himself. It calls for the death penalty. Now, in this case, this was a mass murder. It was an act of grotesque, unspeakable antisemitism. It was directed against the Jewish people.

Part III

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A Just Society Executes True Justice: Capital Punishment and the Case of Adolf Eichmann

Now, at the deepest worldview level, I want to point out that the death penalty is connected to premeditated murder is something that appears to be not only revealed explicitly in God’s Word, but something that comes very much to the fore of the human conscience. Even where the death penalty is supposedly opposed, and even where it is made illegal, there is still an impulse. Let me give you an example of that. In the late 1950s, the state of Israel, then still a very young nation, eliminated the death penalty. That was seen as a sign of the progressivism at the time of the Israeli government. The death penalty no more. And yet, right now in Israel, there is a conservative majority that is seeking to bring back the death penalty. Why? Well, it is because the death penalty cries out in the human conscience that in the case of certain crimes, and here we’re talking about premeditated murder, sometimes even mass murder, only the death penalty makes moral sense.

It doesn’t make moral sense to convict someone of premeditated murder on a mass scale, and then sentence them to 11 consecutive life sentences without the possibility of parole. We understand that makes some kind of poetic statement, but it hardly amounts to justice. The death penalty as revealed in Scripture, as revealed by God himself, there in the Noahic Covenant, makes very clear that when there is a premeditated murder of a human being who is an image bearer of God, it’s an assault not only upon the human being, but upon the Creator himself. It calls for the death penalty. Now, in this case, this was a mass murder. It was an act of grotesque, unspeakable antisemitism. It was directed against the Jewish people.

Now, let me go back to Israel. The death penalty was eliminated there in the late 1950s. But in 1960, the architect of the Holocaust in the Third Reich, Adolf Eichmann, was apprehended in Buenos Aires, Argentina by Israeli agents. He was brought back to Israel for a trial. And in that trial, he was convicted of mass murder on a monumental scale. Eichmann was himself credited as being something of the architect of what became known as the “final solution”–the elimination of the Jewish people on the European continent. He was present at the infamous Wannsee Conference in 1942, in which the so-called final solution was put into effect and final plan. He was apprehended in a dramatic and secret operation by Israeli operatives in 1960. He was put on trial in 1961. He was convicted of the crimes of which he was accused. And in 1962, he was hung by Israel for his crimes. In other words, the death penalty was applied.

What Israel affirmed by saying it had eliminated the death penalty–except in specific kinds of horrific attacks upon the Jewish people like the Holocaust–actually made the logical point that the death penalty is not never appropriate, but in a sane society it would be rarely applied.

What we see right now in our society is a moral confusion that does not understand that if the death penalty is simply taken off the table, if we are told that it’s an impossible penalty for any kind of crime, then we should expect the moral conscience of the people to be continually troubled by the fact that, say, handing down 11 life sentences consecutive without the opportunity of parole is really nothing more than a prosecutorial fiction.

I’ll simply end by saying that when it comes to the death penalty for the crime of premeditated murder–one murder or many murders–the point is the same. As the Lord God himself made clear in the Noahic Covenant, the issue is the attack upon his own image in every single human being. But we also need to note that it is the image of God not only that explains why the death penalty is necessary. It also explains why human beings made in God’s image indeed know, whether they want to admit it or not, that it is necessary.